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Criminal Culpability Negligence

Introduction

The report will be examining the concept of, and the legitimacy of using, gross (or criminal) negligence as a standard of criminal culpability. When two conceptions of the concept have been properly distinguished, I shall suggest that the two conceptions of gross negligence may quite properly be given contrasting, but nonetheless quite wide-ranging, roles as forms of mens rea. (Beale, 2006, 979)

This will be a controversial proposal. When crimes involve actions that are mala in se, it has been thought by many distinguished judges and commentators that the stigma attaching to conviction makes it wrong to convict defendants who did not avert to the wrongfulness of their conduct (the thought being that it should not be possible to 'blunder into' morally tainted criminal wrongdoing); and a defendant may be found to have been grossly negligent whether or not he or she adverted to the wrongfulness of his or her conduct. (Beale, 2006, 979) It was not always thus. As we shall see, in the nineteenth century, a number of distinguished judges were quite happy to employ the gross negligence standard, in part because they did not draw the sharp distinctions between objective and subjective forms of mens rea that modern commentators insist on when evaluating the appropriateness of different forms as mens rea standards.

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I will start by claiming that gross negligence has always been a broad enough notion to encompass a state of mind that cannot be captured by any simplistic distinction between advertence and inadvertence. That state of mind is 'indifference Properly understood, indifference can be an attractive mens rea term to employ even where crimes involve actions mala in se. As we shall see, it has proved popular with the higher courts in England, and fits in well with definition of criminal negligence in the Canadian Criminal Code as showing a 'wanton and reckless disregard' for the life or safety of others. As we will see, moreover, the very fact that the notion of indifference defies categorization as purely advertence or inadvertence-based, means that its use poses a significant challenge to stalwart defenders of unadulterated subjectivism in criminal law, such as Alan Brudner.

indifference, however, is only one conception of the form gross negligence may take. I shall go on to suggest that even a more clearly inadvertence-based conception, focused on a great departure from an acceptable standard of conduct, may also be legitimately employed in a narrow range of cases. These are some of the cases in which a positive duty of care was owed by the defendant to the victim, such as the duty owed by a doctor to a patient, rather than a merely negative duty not to cause harm. The defence of an inadvertence-based conception of gross negligence will be more complex. It will take the form of an explanation of the appeal of subjectivist theories of mens rea in terms of a practical reasoning account of culpability.

Analysis

What is grοss (or criminal) negligence?

in English law, the use of negligence as a standard of criminal liability emerges in homicide cases during the sixteenth century. The insistence that negligence be 'gross' or 'criminal' before it will suffice in respect of a death caused is a nineteenth-century development, one that gathers pace following the increase in maximum penalties for manslaughter in 1822. Historically, there have long been clear distinctions between what twentieth-century theorists now call 'subjective' and supposedly wholly 'objective' kinds of mens rea, like negligence.

One example, well-established in England even in the early nineteenth century, is found in the difference between 'malice,' the mens rea term used for a number of crimes mala in se such as murder, (Beale, 2006, 979) and 'neglect,' a widely-used term for offences arising (for example) out of the relationship between parents and children, or the captain of a ship and his crew. Malice was clearly understood to have a subjective meaning -- involving an act wrongfully directed at the victim -- whereas neglect was not. Where gross negligence was concerned, however, nineteenth-century judges took little trouble to spell out, in a way that would satisfy a twentieth-century subjectivist critic, whether that term involved an essentially subjective or objective standard of culpability. in Nicholls, for example, Brett J. said of the degree of negligence required:

Mere negligence will not do, there must be wicked negligence, that is, negligence so great, that you must be of the opinion that the prisoner had a wicked mind, in the sense that she was reckless and careless whether the creature died or not.

Whether 'wickedness' here requires an actual subjective awareness of risk is left unclear by Brett J., and in common with many judges of that time, the sharp distinction now commonly drawn between gross negligence and recklessness does not feature on his moral map. On the whole, most nineteenth-century judges showed little interest in categorizing their definitions of gross negligence as either subjective or objective. Nonetheless, we have more to learn from some of these early approaches to gross negligence than modern writers have supposed. (Beale, 2006, 979)

There are a number of important propositions contained in this direction. One proposition is that gross negligence is perfectly consistent with inadvertence, and can thus be judged objectively: this is brought out by the way in which the contrast between the two forms of gross negligence is drawn. More significant is the proposition that gross negligence comes in two forms. There is ignorant rashness: the 'leap in the dark'; but there is also the case of the doctor who goes hunting. How is this case different? Whereas someone guilty of ignorant rashness might well be doing her or his incompetent best, and yet be found grossly negligent, the doctor who goes hunting when he or she should be treating his or her patient does not care about the patient: he or she is indifferent to the patient's welfare. (Brickey, 2006, 1135) in the former case, gross negligence is found in an objective judgment about the great extent of a departure from an expected standard, and in the latter case, gross negligence is found in a judgment that the accused displayed a cavalier attitude in his or her conduct towards the standards expected.

Willes J. is right to distinguish two forms of gross negligence in this way, but he is guilty of confusing penetration. He confuses the distinction between a form of gross negligence, and different manifestations of that form. Going hunting when one should be caring for a patient is clearly a manifestation of a form of gross negligence, that form being indifference (a notion that will be given detailed scrutiny shortly).

opposing to Willes J.'s suggestion, however, 'ignorant rashness' is a manifestation of a form of gross negligence, rather than a form of gross negligence in itself. 'Ignorant rashness' is one way in which one can make manifest -- through a foolish confidence in one's own abilities -- what was referred to above as the other form of gross negligence, a great departure from an expected standard; but there are other ways to manifest such a departure. One may depart greatly from expected standards by exhibiting a blameworthy lack of skill, even if the element of 'rashness' is not present in that the level of one's confidence in one's abilities is low, as when a surgeon bungles an operation she or he is performing for the first time. And deficiencies of skill are distinct from other deficiencies that may equally manifest great departures from expected standards. One example is a deficiency of knowledge, where one simply does not know enough to undertake some risky task (involving no skill), (Brown, 2006, 225) such as dispensing medication. An example is provided by another nineteenth-century case about an unlicensed physician, Reg. v. Long. Here, the defendant had continued to apply a lotion to the victim's back in spite of the fact that it was causing inflammation and sickness. He assured her that her sickness was itself part of the cure. She died, and he was charged with and convicted of manslaughter. in summing up for the jury, Park J. said:

Though he is not licensed, yet experience may teach a man sufficient; and the question for you will, by and by, be whether the experience this individual acquired does not negative the supposition of any gross ignorance or criminal inattention ... The question is whether there was gross ignorance in this gentleman, or scandalous inattention in his treatment of this lady.

A direction to the jury in the terms used in the last three lines was not uncommon in the early nineteenth century, and brings out a further possible manifestation of a great departure from expected standards, through a deficiency in point of attentiveness (where one fails to bring to bear on some risky task a vital piece of knowledge that one has). So, whilst gross negligence has two forms - indifference, and a great departure from expected standards - (Clark, 2006, 1029) these forms (and in particular the latter form) may be made manifest by different kinds of deficiencies, such as deficiencies in point of virtue, of skill, of knowledge, and of attentiveness.

It is now time to look in turn at the two forms of gross negligence, indifference and a great departure from an expected standard. First, indifference. Two important questions must be answered respecting the notion that indifference is a form of gross negligence. First, what is the so-called 'affective state' of indifference? And second, what could be the method to prove indifference? in answering these questions, we will come to appreciate the complexity of subjective bases for criminal liability, a complexity that poses a significant challenge for defenders of traditional subjectivism.

What is indifference?

During the 1980s the higher English courts became increasingly willing to define the statutory mens rea terms of 'recklessness' and 'wilful neglect' in terms of indifference. in Sheppard, the House of Lords was concerned with the question of what the prosecution must show, in terms of the mental element, if it is to be established that the accused was guilty of 'wilfully' neglecting his child. Lord Edmund-Davies argued that a parent reckless about the state of his child's health, not caring whether or not he is at risk, cannot be heard to say that he never gave the matter a thought and was therefore not wilful in not calling a doctor. in such circumstances recklessness constitutes mens rea no less than positive awareness of the risk involved in failure to act.

Directions using the notion of indifference as an explanation of the mental element both in rape and in sexual assault have also been employed by the Court of Appeal in Pigg (rape), Satnam & Kewal (rape), and in Kimber (indecent assault) where recklessness was described as encompassing an 'attitude ... of indifference to [the victim's] feelings and wishes.' in Pigg, Lord Lane, the then Lord Chief Justice, said that it would suffice as proof of recklessness in rape if the prosecution could show that the accused) was indifferent and gave no thought to the possibility that the woman might not be consenting in circumstances where if any though had been given to the matter it would have been obvious that there was a risk she was not. ...

It is clearly noteworthy that in these cases indifference - not caring -is used to describe instances in which the accused did not advert to the possible consequences of his or her conduct. The subjective element in indifference lies, then, not in any necessary advertence to possible harmful consequences, but as the cases together suggest, (Cohen, 2005, 729) in an uncaring attitude towards the victim's relevant protected interests. indifference is thus concerned not with a simple (subjective) cognitive state of mind, but with a complex (subjective) affective state of mind. This is also how indifference is understood by the theorist who is best known as having done most to promote its use as a mens rea term, Antony Duff.

What does it mean, though, to have displayed in one's conduct indifference in the form of an 'uncaring attitude' towards some protected interest of the victim? The English courts have said nothing about this. Perhaps because he is primarily concerned with how indifference can be proved (the second question I shall address), Duff likewise tells us surprisingly little about what he understands by that notion. A hint is to be found in his discussion of the appropriateness of the use of indifference as the mens rea in rape. He says, 'the fault element in rape should ... consist in a serious disregard or disrespect for [the victim's] sexual interests and integrity.' Implicit in this claim could be found both a stronger and a weaker view of the meaning of indifference. The weaker view centres on the notion of 'disrespect' for the victim's interests.

in Raz's terminology, one can think of the victim's interests as an agent-neutral value, an interest everyone has an operative reason to respect. If everyone ought to respect the victim's interests, then the victim's interests should figure in any reasonable agent's practical reasoning regarding what ought (not) to be done in any sexual interaction with the victim. One's own desires and interests, on the other hand, may be what Raz describes as agent-relative values. Agent-relative values may (but not must) be of concern only to the agent, and only she or he may have a reason to promote them (although others, such as those close to him, (Crystal, 2006, 152) may have such a reason). Now, when we describe someone as 'weakly indifferent,' we can say of them that they are practically unreasonable. That is to say, they are disposed to place pursuit of agent-relative values, their own desires and concerns, ahead of respect for agent-neutral values. in so far as the weakly indifferent person can be made to appreciate the existence (and strength) of agent-neutral reasons for action, in any given situation, they may affect his or her practical reasoning; but for the weakly indifferent person the existence (and strength) of agent-neutral reasons may be obscured by his or her attachment to the pursuit of agent-relative values in a particular set of circumstances. To take Duff's example, suppose a man forces intercourse upon a protesting woman because he has been (falsely) assured by her husband that her protests will be made solely in order to heighten her own excitement. Duff (rightly in my view) describes such a man as indifferent, even if his belief in what he has been told by the husband is genuine and honest, and hence he does not realize that the victim is not consenting; but even if that is true, the man may only have been weakly indifferent. The man's state of mind could be described as having been that he was obsessively concerned with his own desires and interests, which is why he paid scarcely any attention to the authenticity of the victim's protests, but that had he realized the victim was not in fact consenting he would have desisted. in other words, the victim's dissent needs to be much more obvious to the weakly indifferent person, if he is to change the course of his conduct, than it would need to be to the practically reasonable person. But, if clear and irrefutable evidence of the victim's dissent does become apparent to him, the weakly indifferent person is prepared to change his course of conduct.

This state of mind can be contrasted with that of the strongly indifferent person. Strong indifference is centred on Duff's notion of 'disregard' for the victim's interests. The strongly indifferent person is not swayed by agent-neutral values, such as the victim's interests, but is moved only by his own agent-relative values (and prudential reasons relating thereto). It follows that, like the weakly indifferent person, the strongly indifferent person is usually too obsessed by his agent-relative values to appreciate the existence of the agent-neutral values at stake in the situation in which the relevant action takes place. But, (Dan, 2006, 625) even if the strongly indifferent person discovers agent-neutral values giving rise to reasons not to act on his agent-relative values, they make no difference to his practical reasoning. Unlike the weakly indifferent person or (a fortiori) the practically reasonable person, he disregards agent-neutral values as such. It is indifference in the strong sense which Lord Hewart C.J. can be argued to the endorsing in his famous definition of gross negligence in R. v. Bateman: in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the state and conduct deserving of punishment.

This definition has frequently been criticised as circular: gross negligence is negligence so bad it amounts to a crime. On a more generous reading, however, Lord Hewart C.J.'s use of the phrase 'disregard for the life and safety of others' can be understood as saying that gross negligence is negligence that displays an attitude of strong indifference, a disposition not to be moved by agent-neutral values whether one knows of their existence or not. (Dan, 2006, 625)

So, the weakly indifferent person displays great insensitivity to the existence of agent-neutral values generating reasons against his conduct grounded in another's interests, in circumstances where the practically reasonable person would have been much more alive to the possibility of harm to those interests. Had the weakly indifferent person recognized the existence of these agent-neutral values, however, he would have avoided engaging in the risky conduct in question, whereas this is not true of the strongly indifferent person. The strongly indifferent person's deficiency of virtue lies in appearing that he would be simply unmoved by agent-neutral values giving rise to reasons not to engage in action he wishes to perform. It follows that the strongly indifferent person would not have changed the course of his conduct, even if he had come to recognize the existence of reasons for action he knows reasonable people would regard as counting against that course of conduct. Neither the weakly indifferent nor the strongly indifferent person is likely to spot agent-neutral values generating reasons not to do as they propose to do; the former because he is insensitive (boorish), the latter because he is concerned only with agent-relative values.

We should note, finally, that indifference is distinct from the other form of gross negligence, a great departure from an expected standard. (DeLancey, 2006, 177) indifference may legitimately be regarded as a form of gross negligence because 'grossness' can have a qualitative as well as a quantitative dimension. It is gross negligence in the form of a great departure from an expected standard that illustrates the quantitative dimension. Someone could have been enthusiastically seeking to promote another's interests (such as the defendant in Long, discussed above), and hence not been indifferent, yet shown such an appalling lack of skill or knowledge as to be accounted grossly negligent through a great departure from an expected standard. Such as person's negligence will be adjudged gross according to a quantitative rather than a qualitative criterion.

How can indifferenсe be proved?

Moving to my second question, it is sometimes suggested that indifference (in whatever form) is unsuited to the forensic process as a mens rea concept because it cannot be proved in the same way as ordinary subjective recklessness or gross negligence. For example, in relation to what I have called strong indifference, Smith and Hogan have claimed that one could conclude a defendant was indifferent 'only from evidence as to his general character and habits which the law of evidence does not allow.' This claim is wrong on two counts. First, evidence of character and habits may sometimes be admissible if such evidence is relevant, (Drinan, 2001, 509) and if its probative value outweighs its prejudicial effect; but it is, quite simply, rarely relevant even when seeking to prove that a defendant was indifferent. Suppose a man with an appalling criminal record of violence tries to drag an unconscious crash victim to safety but succeeds only in incompetently dropping the victim on her head, killing her.

In judging whether this conduct manifested indifference, the man's previous record -- his character and habits -- will be of little or no relevance. By way of contrast, the fact that he was trying, albeit incompetently, to rescue the victim will be a vital piece of evidence tending to show that he was not indifferent to her fate.

Smith and Hogan's second error, as Duff has convincingly demonstrated, is to confuse evidence that someone is indifferent by nature (a claim about that person's character) with evidence that a particular action manifests indifference (a claim about that person's conduct). It is only with the latter that the law is concerned. Suppose that X hits Y repeatedly with an iron bar in the course of robbing him. Y later dies. At X's trial for the murder of Y, X claims that he never considered whether his conduct might kill Y because he (X) was so intent on breaking Y's resistance to the robbery before the police arrived that the possibility of Y's death did not occur to him. If it were sufficient to prove indifference to death as the mens rea of murder, how could this is shown on these facts? As Duff puts it, speaking of an example of this kind:

The indifference which constitutes recklessness is a matter, not of feeling as distinct from action, but of the practical attitude which the action itself displays. ... What I perceive or focus to reflects what I care about; as well as my extraordinarily failure to observe something can show my complete indifference to it ... once we reject [the] dualist distinction between attitude and action, and recognise that an agent's actions can manifest her attitudes as well as her intentions, we can explain criminal recklessness in terms of the practical indifference which the agent's actions display; and we can also see that such practical indifference can be displayed both in conscious risk-taking, and in her very failure to notice a risk.'

in the example I have given, one may (but need not) infer that X was indifferent to Y's death from readily admissible evidence concerning, for example, the number of times X hit Y with a heavy instrument, and the force of the blows. One may conclude from this evidence that X would have done exactly as he did even if he had realized that Y's death might be the result (strong indifference). Alternatively, one may conclude that even if X would have hit Y less hard or less often if he had realized the possible consequences of a more vicious attack, that realization was prevented by X's selfish concern with his desire to rob Y (weak indifference). Either way, in proving that X was indifferent to Y's death, one will not be concerned with what Smith and Hogan call X's 'general character and habits,' but with what X did and the way that he did it.

This taken us to the more difficult question of whether indifference fits in, as a mens rea concept, with the theoretical justification given for subjectivism by Alan Brudner. Brudner has claimed that 'subjective mens rea [is] an essential element of criminal desert, because it trigger[s] the conceptual circuit between wrongdoing and punishment.' He has expanded on this as claim as claim as follows.

The mens rea of criminal culpability is not whatever state of mind or level of fault a lawmaker has stipulated for an offence; nor is it the level of moral blameworthiness needed to justify the severest sanctions a legal system administers. ... What alone takes us to criminal punishment is the intentional or (advertently) reckless disdain for the autonomy of another self that, when absolutised as a principle, involves the insecurity of one's own liberty as its necessary consequence. ... [States of mind that fall short of denying the end-status of personality imply no negation of right that could rebound against the wrongdoer.'

For Brudner, intention and subjective recklessness are not employed as mens rea terms in relation to wrongdoing because they are examples of morally reprehensible ways in which wrongdoing can be done. intention and subjective recklessness, along with other terms such as knowledge and dishonesty, are the only legitimate mens rea terms because they are the only states of mind consistent with -- indeed, they embody -- what Brudner regards as the essence of a criminal wrong, where a defendant 'challenges the intersubjective foundation of valid claims to respect, claiming an absolute worth for his singular self and denying worth to the other.'(Drinan, 2001, 509)

This problem may be more than just a quibble over whether Brudner's list of permissible mens rea terms is incomplete. It is fundamental to Brudner's theory that inadvertent wrongdoing, however gross the negligence that led to it, cannot be rightly described as criminal wrongdoing because if one wrongs another inadvertently one does not implicitly deny the end-status of the victim's personality. (Brown, 2006, 225) Remember however, that if, in a case of inadvertent wrongdoing, one is found to have been strongly indifferent, one is found to have been quite prepared to go ahead and commit the wrongdoing even if one had seen the possibility of it. in such circumstances, what reason could there be for attributing any normative significance whatsoever to the mere fact of one's (chance) inadvertence? Brudner might argue that this line of reasoning is an argument that there is, in cases of strong indifference, no moral distinction between advertent and inadvertent wrongdoers; and (in the passage cited above) he rules out moral considerations as a basis for legitimating mens rea terms. So much the worse, then, for his argument. If it can be proved that my conduct showed that I would have carried on to pose the risk of unjustified harm to the victim even if I had recognized the risk as such, then the fact that I did not see the risk should be neither here nor there, in point of criminal liability. It may be, of course, that even if one accepted this point, it would do nothing to show that Brudner's account of criminal wrongdoing is fatally flawed. The challenge for Hegelians such as Brudner, though, is to account for strong indifference within their conception of mens rea without abandoning the subjectivism at the heart of that conception.

Conclusion

in this report, we have been concerned only with the meaning of gross negligence and the justification for employing its forms as a mens rea standard. we have not touched on the question of whether, and if so where, it may be appropriate to use the ordinary civil standard of negligence in a criminal context. My focus has been justified by the fact that it is gross (or criminal) negligence that has historically been associated with the criminalization of wrongs such as manslaughter, rape, and -- in Canada -- causing actual bodily harm. (Brown, 2006, 225).

These wrongs are mala in se, and hence the stigma attaching to conviction demands that only the highest forms of blameworthiness in committing such wrongs will suffice as the form mens rea incorporated into their criminalization. Subjectivists have always claimed that only advertence-based forms of mens rea meet this demand. My task has been to show that the soundest theory underpinning subjectivism itself this conclusion unwarranted. Gross negligence, whether in the form of indifference or in the form of a great departure from an expected standard, has a limited but legitimate role to play in the criminalization of wrongs that are mala in se.

References

Primary sources:

Beale, Sara Sun, 2006, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. Pp 979-1225

Brickey, Kathleen F, 2006 Criminal Mischief: The Federalization of American Criminal Law, 46 HASTINGS L.J, Pp 1135-1390

Brown, Edmund, 2006, Unraveling a Tangled Skein, TRIAL, Pp 129-225

Clark, Tom C, 2006, Symposium on Proposed Criminal Codes: Prologue, 68 NW. U. L. REV. Pp 817-1029

Cohen, Laurence J. & Terry R. Yellig, 2005, Efforts to Apply the Federal Crime of Extortion to Labor Related Violence, 72 J. CRIM. L. & CRIMINOLOGY Pp 499-729

Crystal, Daniel. Myths, Reality and the Proposed Federal Criminal Code, N.J. L.J., Pp 152-189

Secondary sources:

Dan-Cohen, Meir, 2006, Decision Rules and Conduct Rules: On Accoustic Separation in Criminal Law, 97 HARV. L. REV. Pp 625-798

DeLancey, William J. et al, 2006, Economic Crimes: The Proposed New Federal Criminal Code, 27 BUS. LAW. Pp 177-212

Drinan, Robert F. et al, 2001, The Federal Criminal Code: The Houses Are Divided, 18 AM. CRIM. L. R. Pp 509-1290

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